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Law 245 Week 6 Notes

by: Frankie Fucci

Law 245 Week 6 Notes LA 245

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Frankie Fucci
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These notes cover the first part of chapter 16 and all of chapter 17 and 18 that we were assigned. It also includes classes 9 and 10 notes.
Introduction to Law
David Randall
Class Notes
Law, Law245
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This 19 page Class Notes was uploaded by Frankie Fucci on Friday February 26, 2016. The Class Notes belongs to LA 245 at Boston University taught by David Randall in Spring 2016. Since its upload, it has received 50 views. For similar materials see Introduction to Law in Law at Boston University.


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Date Created: 02/26/16
Agency Law (Continued)  Principal's Liability for Torts  Respondeat superior ("let the master answer"): an employer is liable for a tort committed by its employees acting within the scope of employment or acting with authority o Employer (principal) is liable for misbehavior by the employee (agent) whether or not employer was at fault  Ex: employee breaks company policy  Logic is that because the principal controls the agent, he should be able to prevent misbehavior  If he cannot prevent it, at least he can insure against the risks  Also, principal ay have more money than the agent and therefore be better able to pay  Employee o Two kinds of agents - employees and independent contractors o Principal may be liable for the torts of an employee but generally not liable for the torts of an independent contractor o Employee or Independent Contractor?  The more control the principal has over the agent, the more likely he is an employee  When considering which kind of agent, consider whether:  Principal supervises details of the work  Principal supplies the tools/place of work  Agents work full time for the principal  Agent received a salary or hourly wage, not a fixed price for the job  The work is part of the regular business of the principal  The principal and agents believe they have an employer-employee relationship  The principal is in business o Negligent Hiring  General rule, principals are not liable for the torts of an independent contract  Exception: the principal is liable for the torts of an independent contractor if the principal has been negligent in hiring or supervising him  Principal is liable only if he was at fault by being careless in his hiring or supervising  Scope of Employment - principals are liable only for torts that an employee commits within the scope of employment o Employee is acting within this scope if the act:  Is one that employees are generally responsible for  Takes place during hours that employee is generally employed  Is part of the principal's business  Is similar to the one that principal authorized  Is one for which the principal supplied the tools; AND  Is not seriously criminal o Raises 2 major issues:  Authorization - an act is within the scope of employment, even if expressly forbidden, if it is of the same general nature as that authorized or if it is incidental to the conduct authorized  In these cases, agent is clearly working for the principal but commits an act that principal has not authorized  Abandonment - principal is liable for the actions of the employee that occur while employee is at work, but not for actions that occur after employee has abandoned the principal's business  Issue - determining whether employee has in fact abandoned the principal's business  Zankel v. USA  Dreyer - recruiter for US Marine Corps  Marine Corps provided Dreyer with a car to drive while on gov't business only  Couldn’t use the car to travel to and from home unless he had special authorization from his boss, Sherman  Sherman was flexible in giving this authorization - even allowed his soldiers to simply leave a voicemail  Had denied very few requests over a 3 year period  Recently, Dreyer has been missing his monthly quotas for months  Sherman had reprimanded him and increased his target for the following month  Day before the accident, Dreyer left home in his own car and went to work, when we was going to head home, his car wouldn't start  It was 10:45PM and he didn't want to wake Sherman with a call, so he drove the government car without permission  He believed that, had he asked, Sherman would have said yes  Next day, left for work at 635AM in the gov't car, at 640AM is car hit/killed 12-year old J. Zankel  Justin's parents sued the federal gov't claiming it was liable for Dreyer's actions because he had been acting within the scope of his employment at the time of the accident  Issue: Was Dreyer within the scope of employment when he killed Zankel?  Argument for Zankel: he was driving the gov't car during the accident  Had he asked for permission, he probably would have gotten it  Driving the car was part of/necessary for his work  He was out early (and probably tired from a late night) because of his job  Argument for US: clear policy that stated recruiters weren't allowed to drive gov't car without permission  Well established that an employee commuting to and from work is not within the scope of employment  Intentional Torts - principal is no liable for the intentional torts of an employee unless o Employee intended to serve some purpose of the employer, or o Employer was negligent in hiring or supervising this employee o Doe v. Liberatore  Many priests wrote to Timlin, Bishop of Scranton, warning him that Father Albert Liberatore was engaging in a sexual relationship with one of his male students  Transferred Liberatore from a school to a parish church  14-year old John Doe was a member of Liberatore's parish  Doe was befriended by Liberatore, whoch gave him expensive gifts and took him out  Doe commonly slept in Liberatore's bed  Number of priests told Bishop Timlin they feared Liberatore was sexually abusing Doe  A woman reported witnessing a sexual encounter between the two  Doe told a priest that he was being sexually abused  Priest instructed Doe to forgive Liberatore and not tell others because it would ruin Doe's life and the lives of others  Only after Liberatore pleaded guilty to multiple counts of sexual abuse did the Church dismiss him from the priesthood  Doe filed suit against the Church and Bishop Timlin, alleging they were liable for the torts committed by Liberatore, defendants filed motion to dismiss  Issues: Was Liberatore acting within the scope of his employment? Was the Church liable for his criminal acts?  Conduct of employee is considered within the scope of employment if:  It is of a kind and nature that the employed to perform  It occurs substantially within the authorized time and space limits  It is actuated, at leas tin part, by a purpose to serve the employer, and  If force is intentionally used by the employee against another, the use of force is not unexpected by the employer  This situation doesn't not fit this criteria, so in the case Doe, court grants summary judgement in favor of the Church and Temlin  For the claims that the Church and Temlin were negligent in their hiring, supervision and retention of Liberatore, law holds that to be liable, must be shown that employer knew or reasonable should have known of the necessity to exercise control of the employee  In this case, Church and Temlin not negligent in hiring Liberatore, because there is no evidence suggesting he was or would become a child sex predator when he was hired  Physical or Nonphysical Harm o Physical torts - principal is liable for the negligent conduct of an employee that occurs within the scope of employment o Nonphysical torts - treated more like contract claim, and principal is liable if the employee acted with express, implied or apparent authority Agent's Liability for Torts   Agents are always liable for their own torts (even if acting on behalf of principal)  If agent and principal are both liable, with does the injured party sue? o Agent and principal are jointly and severally liable --> injured third party can sue either one or both Employment and Labor Law  Introduction  Industrial Revolution - old laws used for employment no longer worked o Common law became - an employee at will could be fired for a good reason, a bad reason or no reason at all  In practice, led to harsh results o 20th century - employment law has changed drastically  BUT: in the absence of specified legal exception, the rule in the US is still that an employee at will can be fired for any reason  But many important exceptions o Some laws were passed by congress and therefore apply nationally o The common law, however, comes from state courts and only applies locally  Employment Security  Family and Medial Leave Act (FMLA): guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption or a serious health condition of their own or in their immediate family o Must be allowed to return to the same/equivalent job with same pay and benefits o Applied only to companies with at least 50 workers and to employees who have been with the company full time for at least a year o Immediate family member = spouse, child or parent  Not sibling, grandchild or in-law o Serous health condition=  Any health issue that requires hospitalization  Condition that requires more than one visit to a health care provider (visits may be spread out over as long as a year)  Condition that requires only one visit to a heath care provider, but which also requires course of treatment such as physical therapy/prescription medication o Peterson v. Exide Technologies  Exide repeatedly warned Robert Peterson for driving forklifts too fast and violating other safety rules  After being injured in a forklift crash, Exide granted him FMLA leave for 10 days to recover  His manage fired him during his leave period for "flagrant violations of safety rules"  Peterson sued, claiming he was terminated in retaliation for exercising his right to take FMLA leave  Lower court granted summary judgement to Exide, Peterson appealed  Issue: Was Peterson fired in retaliation for claiming FMLA leave?  FMLA makes it unlawful for any employer to interfere with, restrain or deny exercise of rights provided by the FMLA, or discriminate against any individual for opposing any practice prohibited by the FMLA  Defendant asserts it dismissed plaintiff for legitimate reason that he violated safety policies  "Based on the photos of the crash, plaintiff was driving too fast and was not operating his forklift in a safe manner"  Also manager based his decision to fire plaintiff on "history of careless and unsafe conduct"  As this is a valid reason --> burden shift back to plaintiff to provide context  Plaintiff argues defendant's asserted justification is pretextual because the forklift accident was a "minor incident"  Still, don't see anything that prevents defendant from firing plaintiff for "minor" safety violates (though if it was minor is questionable)  Decision to grant summary judgement is affirmed  Health Insurance o Companies not required to provide health insurance to their employees  Starting in 2014: employers with >50 fulltime employees must pay a penalty if they don’t provide basic health insurance  Company insurance policies must cover employees' children up to age 26 o Consolidated Omnibus Budget Reconciliation Act (COBRA): former employees must be allowed to continue their health insurance for 18 months after being terminated from their job  Catch: employees must pay for it themselves, up to 102% of the cost  Extra 2% covers administrative expenses  Applies to any company with 20+ employees  Common Law Protections o Courts have created a major exception to the employment-at-will doctrine because it has sometimes led to grossly unfair results o Wrongful discharge: an employer may not fire a worker for a reason that violates basic social rights, duties or responsibilities  Prohibits an employer from firing a worker certain particularly bad reasons  "bad reason" = reasons that violate public policy  Public policy rule: prohibits employer from firing a workers for a reason that violates basic social rights, duties or responsibilities  Courts primarily apply public policy rule when employee:  Refuses to violate the law - as general rule, employees may not be discharged for refusing to break the law  Performs a legal duty - courts have consistently held that an employee ma not be fired for serving on a jury  Exercises a legal right - as general rule, employer may not discharge a worker for exercising a legal right if that right supports public policy  Supports societal values - courts are sometimes willing to protect employees who do the right thing, even if they violate boss's orders  This issue is one on which courts are divided  Kozloski v. American Tissue Services Foundation  ATSF supplies human tissue from cadavers for transplantation into live patients  Mike Slack, employee, revealed to his boss that he falsified a donor medical record and changed the donor's blood type on the from  This was dangerous for recipients of the tissue, and violation of FDA regulations  Slack was fired and reported to the FDA, as required by law  Slack was the foster child of the company's chairman  Chairman hired Slack back as a quality assurance specialist and fired Slack's boss and the two men who reported the issue to the FDA  The men filed suit against ATSF for wrongful discharge but company filed a motion to dismiss on the grounds that the public policy doctrine in Minnesota applied only to employees who had refused to violate the law  Issue: Does the public policy doctrine in Minnesota apply only if the employee has been fired for refusing to violate the law? Plaintiffs claim their terminations occurred as  a result of their reporting their employee to FDA and reporting other quality issues that affect public safety  Court rejects defendant's claim that only common law wrongful discharge in Minnesota is one based on allegations that termination was in retaliation for refusing to break the law  Minnesota Supreme Court has recognized common law wrongful discharge claim when discharge is for a reason that clearly violates public policy o Contract Law  Traditionally, employers/employees thought hat only a formal, signed document qualified as an employment contract  Courts have been willing to enforce employer's more casual (written or oral) promises and willing to imply contract terms in the absence of an express agreement  Truth in Hiring - oral promises made during the hiring process can be enforceable, even if not approved by the company's top executives  Employee Handbooks - an employee handbook creates a contract  Covenant of Good Faith and Fair Dealing - in almost all states, courts will imply a covenant of good faith and fair dealing in an at-will employment relationship  Covenant of good faith and fair dealing prohibits one party to a contract form interfering with the other's right to benefit under the contract  All parties are expected to behave in a fair, decent and reasonable manner  Commonly arise when employer fires a worker to avoid paying promised income/benefits o Tort Law - workers have successfully sued their employers under the following tort theories  Defamation - employers must be liable for defamation when they give false and unfavorable references about a former employee  More than half of the states recognize a qualified privilege for employer who give references about former employees  Qualified privilege: employers who give references are liable only for false statements that they know to be false or that are primarily motivated by ill will  Generally, courts have held that employers do not have a legal obligation to disclose information about former employees  In some recent cases, however, courts have held that, when a former worker is potentially dangerous, employers do have an obligation to disclose this information  Intentional Infliction of Emotional Distress - employer who condone cruel treatment of their workers may face liability under the tort of intentional infliction of emotional distress  Whistleblowing: when employees disclose illegal behavior on the part of their employers o As general rule, whistleblowers are protected in the following situations:  The False Claims Act: permits lawsuits against anyone who defrauds the government  Recovery is shared by government (gets 75-85%) and the whistleblower (who gets the rest)  The Dodd-Frank Wall Street Reform and Consumer Protection Act: anyone who provides information to the government about violations of securities/commodities laws is entitles to a payout of 10-30% of whatever award the government receives, provided award tops $1 million  Is company retaliates against tipster - entitled to reinstatement, double back pay and attorney's fees  Sarbanes-Oxley Act of 2002: protect employees of publicly traded companies who provide evidence of fraud to investigators (whether in or outside the company)  Successful plaintiff is entitled to reimbursement, back pay and attorney's fees  Constitutional protection for government employees - employees of federal, state and local governments have a right to free speech under the Constitution  So government cannot retaliate against public employees who blow the whistle if the employee is speaking out on a matter of public concern  Statutory protection for federal employees - Civil Service Reform Act and Whistleblower Protection Act prevent retaliation against federal employees who report wrongdoing  Permit award of back pay and attorney's fees  State laws - every state has laws that protect whistleblowers from retaliation by employers  Bad news: the scope of this protection varies greatly from state to state  Most courts prohibit the discharge of employees who report illegal activity  Privacy in the Workplace  Workers are entitles under the common law to reasonable expectation of privacy o Employers no longer have the right to conduct home inspections, even if, looking for items that employees might have stolen from the company  However, in the absence of a specified law to the contrary, employers do have the right to fire workers for off-duty conduct o Some statutes have changed this common law rule - these statutes take on two forms:  Lifestyle Laws - a few states have passed statute that protects the right of employees to engage in any lawful activity or use any lawful product when off duty o About half the states and federal government have passed laws that protect particular off-duty conduct, such as smoking or use of legal drugs  Smoking  Cost extra money to employ smokers, therefore some companies refuse to hire smokers  This is legal unless state law prohibits it  Rodrigues v. Scotts Lawnservice  Company refuses to hire tobacco users  Also tested all employees for both illegal drugs and nicotine  Scotts offered Rodrigues a job "contingent upon successful completion of a pre-hire screening which includes nicotine test"  Rodrigues voluntary submitted a urine sample and started work  Later, supervisor saw pack of cigarettes on Rodrigues's dashboard and issues warning Then, Rodrigues's test came back positive for nicotine and  he was fired  Rodrigues sued, claiming violation of his privacy rights  Mass law states: A person shall have a right against unreasonable, substantial or serious interference with his privacy"  Issue: Did Scotts' enforcement of anti-tobacco policy violate Rodrigues's privacy rights?  Argument for Rodrigues: Under Mass law, employers not allowed to exercise total control over their employees' personal lives  This drug test would give employer insight into what Rodrigues does at home, in his car, etc.  Smoking has nothing to do with his performance at work, as long as its not at work, the company cannot tell him that he cannot do something that isn't in violation of the law  Argument for Scotts  Nothing private about smoking, usually smokes in public, in car, etc.  No law prohibits the anti-tobacco user policy  Mass law states a person has a right against unreasonable interference with his privacy, but Rodrigues agreed to the drug test and did it voluntarily  Alcohol and Drug Use  Private employers - under federal law, private employers are permitted to test job applicants and workers for alcohol and illegal drugs  They may sanction workers who fail the test, even if the drug or alcohol use was off duty  State laws on drug testing vary widely  Concern was initially about illegal drugs, they now also worry about prescription drugs (Xanax, etc.) because these medications may cause impairment  EEOC prohibits testing for prescription drugs unless a worker seems impaired  Government employers - sometimes allowed to conduct drug and alcohol tests of their employees  Public safety workers (police, firefighters, etc.) can be randomly tested for illegal dugs , and they may be required to report legal drug use that could compromise their ability to perform their jobs  If their drug use (legal/illegal) is threat to public safety, may be suspended/ fired  Other gov't employees, whose work doesn't involve public safety, can be tested only if they show signs of impairment  Polygraph Tests - type of lie detector test  Employment Polygraph Protection Act of 1988: employers may not require, or even suggest, that an employee or job candidate submit to a polygraph test except if:  Employee is part of an "ongoing investigation" into crimes that have already occurred  Applicant is applying for a government job  Applicant is applying for a job in public transport, banking or at pharmaceutical firms that deal with controlled substances  If employer requires polygraph test - must give advance written notice of when the test will be and advise workers that they are entitled to legal counsel  Private employer may not fire or discriminate against an employee who fails a polygraph exam unless it also finds supporting evidence that the worker has done something wrong  Electronic Monitoring of the Workplace  Electronic Communications Privacy Act or 1986 (ECPA) permits employers to monitor workers' telephone calls and email messages if:  Employee consents  Monitoring occurs in the ordinary course of business, or  In case of email, employer provides the email system  Social Media  Employers may find themselves liable for statements that their workers make electronically  Employers may find themselves liable for violations of employee privacy if a boss reads employees' social media pages  Employees have found ways to fight back  National Labor Relations Act (NLRA) - gives employees the right to discuss wages, hours and working conditions  But the National Labor Relations Board (NLRB) may feels that employees are just using the web for hostile posting about employer  Employee can be liable for this  Law often doesn't protect their electronic lives from employer prying, consider anything published on the internet as public  For companies, makes sense to establish policies providing that:  Employees should never reveal their company’s name on a blog/social website  Employees' personal blogs must contain a disclaimer that "All posting on this blog are my opinion and not those of my employer, who has neither vetted nor approves them", blogger should not reveal company's name  Blog comments should never be offensive, impolite or reflect badly on the employer; shouldn’t' reveal confidential or proprietary information  Supervisors have the right to read and take action based on most kinds of electronic information posted by an employee  Immigration - due to discrimination laws, employers should not ask about an applicant's country of origin, but they are permitted to inquire if the person is authorized to work in the US  If applicant says yes, interviewer cannot ask for proof until person is hired  Once hired, employee must fill out I-9 form and show one of the acceptable forms of ID within three days  Employer cannot ask for a specific type, as long as its one of the three  I-9 forms must be kept for three years after he worker is hired or one year after termination  Workplace Safety o Occupational Safety and Health Act (OSHA): passed by Congress in 1970 to ensure safe working conditions:  Employers much comply with specific health/safety standards  Employers are under a general obligation to keep their workplace "free from recognized hazards that are causing/likely to cause death or serious physical harm" to employees  Employers must keep records of all workplace injuries and accidents  Occupational Safety and Health Administration (OSHA) may inspect workplaces to ensure they're safe  May assess fines for violations and order employers to correct unsafe conditions Employment Discrimination  The US Constitution  5th Amendment - prohibits federal government from depriving individuals of "life, liberty or property" without due process of law  14th Amendment - prohibits state governments from violating an individual's right to due process and equal protection  Courts have interpreted these provisions to prohibit employment discrimination by federal, state and local gov'ts  Civil Rights Act of 1866  Meant to provide freed slaves with same rights as white citizens  Interpreted to prohibit racial discrimination in both private and public employment (expect it doesn't apply to federal government)  Title VII of the Civil Rights Act of 1964  Illegal for employers with 15+ employees to discriminate on basis of race, color, religion, sex or national origin  Discrimination applies to every aspect of the employment process  Prohibited activities - 4 types of illegal activity under this statue o Disparate Treatment - plaintiff must show that he was treated less favorably than other because of her sex, race, color, religion or national origin  Burden of proof on the plaintiff - must prove employer intentionally discriminated, but this motive can be inferred from the mere fact of differences in treatment  Required steps in disparate treatment case: 1. Plaintiff provides evidence that: a. He belongs to protected category under Title VII b. He was treated differently from other similar people who are not protected under Title VII a. If can show these facts, he has made a prima facie case  Prima facie: "from its first appearance", something that appears to be true upon a first look b. Not required to prove discrimination, need only create a presumption that it occurred 2. Defendant must present evidence that its decision was based on legitimate nondiscriminatory reasons 3. To win, plaintiff must prove employer intentionally discriminated; may show that: a. Reasons offered were simply a pretext, or b. Discrimination intent is more likely than not 1. Jespersen v. Harrah's a. Jespersen was bartender at sports bar in casino in Nevada b. Outstanding employee, frequently praised by both supervisors and customers c. After being there for almost 20 years, casino implemented program that required bartenders to be "well groomed, appealing to the eye"  Men: short hair, clean nails with no polish, no makeup, black leather shoes Women: hair must be worn down and  teased/curled/styled, clear/white/pink/red nail polish and short, black leather shoes, must wear neat make up d. Jespersen tried to wear make up but stopped - didn’t like how it felt and made it harder to deal with unruly customers because she felt it took away her credibility e. She was fired, and she sued under Title VII f. Court granted casino summary judgment and she appealed g. Issue: Did Harrah's Requirement that women wear makeup violate Title VII  Argument for Jespersen: refused to wear makeup because the cost - money, time dignity (maybe even safety) - was too high  Dress requirements can be different for different gender's but should not cause extra burden on one over the other  Argument for Harrah's: employers are allowed to require different appearance rules for different genders as long as overall burden on employees is the same  Ex: short hair for men  (but does this really create same burden as makeup?) o Disparate Impact - applies if employer has a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected category  Plaintiff doesn't have to prove intentional discrimination  Griggs v. Duke Power Co. 1. Before Title VII, Duke Power hired blacks only for labor department, highest pay was still lower than the lowest earnings in other departments 2. After Title VII, company required all new hires for jobs in the department to have a high school education or satisfactory scores on two tests that measured intelligence/mechanical ability a. Neither test gauged the ability to perform a particular job b. Pass rates were much higher for whites and whites were more likely to have HS diploma 3. Policy didn't apply to the (exclusively white) employees already working in the preferred depts. a. These "unqualified" whites all performed their jobs satisfactorily 4. Black employees sued Duke Power, claiming this hiring policy violated Title VII 5. Trial court dismissed the case, Court of Appeals ruled that the policy was not in violation of Title VII because Duke Power did not have a discriminatory purpose 6. Supreme Court granted certiorari 7. Issue: Does policy violate Title VII if it has discriminatory impact but no discriminatory purpose? a. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation b. The tests or a HS diploma don’t have anything to do with being able to perform the job c. Judgment of Court of Appeals is reversed  Required steps in disparate impact case: 1. Plaintiff must present a prima facie case a. Not required to prove discrimination; he need only show a disparate impact - that the employment practice in question excludes a disproportionate number of people in a protected group 2. Defendant must offer some evidence that the employment practice was a job-related business necessity 3. To win, plaintiff must now prove either that employer's reason is a pretext or that other, less discriminatory rules would achieve the same result  Hiring tests remain controversial o Hostile Work Environment - illegal to permit work environment that is so hostile toward people in a protected category that it affects their ability to work  Applies whether the hostility is based on race, color, religion, sex or national origin  Sexual Harassment: involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which are so severe and pervasive that they interfere with an employee's ability to work; 2 categories: 1. Quid pro quo: "one thing in return for another"; occurs if any aspect of a job is made contingent upon sexual activity 2. Hostile environments - can be created by offensive jokes, intrusive comments about clothes or body parts and public displays of pornographic pictures a. Texts (textual harassment) have become common in sexual harassment b. Teresa Harris v. Forklift Systems, Inc.  Harris was manager at Forklift Systems  Hardy was its president, he frequently made sexual comments to Harris and other women at the company  Harris sued Forklift, claiming that Hardy had created an abusive work environment  Federal trial court ruled against Harris on the grounds that Hardy's comments might offend a reasonable woman, but they were not severe enough to have serious impact on Harris's psychological well-being  Appeals court confirmed, and Supreme Court granted certiorari  Issue: To be a violation of Title VII, must sexual harassment seriously affect the employee's psychological well-being?  Language of Title VII is not limited to economic or tangible discrimination  When the workplace becomes a hostile and abusive environment for people protected, Title VII is violated  Title VII comes into play before the harassing conduct leads to a nervous breakdown  An environment that, while it may not seriously affect employees' psychological well-being, becomes abusive, often will detract from employees' performance, discourage them from remaining on the job or keep them from advancing  Same-Sex Harassment - also violation of Title VII  Employer Liability for Sexual Harassment - is employer also liable for an employees sexual harassment conduct? Supreme Court has held that: 1. Company is liable if it knew or should've known about the conduct and failed to stop it 2. Even if company was unaware of misbehavior, it is nonetheless liable if the victimized employee suffered a "tangible employment action" such as firing, demotion or reassignment\if company was unaware of the behavior and victimized employee did not suffer tangible employment action, company is still liable unless it can prove: a. It used reasonable care to prevent/correct sexually harassing behavior, and b. The employee unreasonably failed to take advantage of the complaint procedure or other preventive opportunities provided by the company  Hostile Environment Based on Race - also violation of Title VII  Hostile Environment Based on Color - most people assume race and color are essentially the same, not necessarily the case 1. Two people can be the same race but different color  Hostile Environment Based on National Origin - also violation of Title VII o Retaliation - Title VII prohibits employers from retaliating against workers who oppose discrimination, bring a claim under the statute or take part in an investigation or hearing  Retaliation = employer does something that would deter a reasonable worker from complaining about discrimination  Religion - employers cannot discriminate against worker because of his religious beliefs; and, employers must make reasonable accommodation for worker's religious practices unless the request would cause undue hardship for the business  Sex - gender must be irrelevant to employment decisions  Family Responsibility Discrimination - parenthood is protected under Title VII o EEOC has issued guidelines indication that stereotypes are not a legitimate basis for personnel decisions and may violate Title VII  Sexual Orientation - Neither Title VII nor any other federal statute protects against discrimination based on sexual orientation o Bill Clinton did sign an executive order prohibiting discrimination based on sexual orientation in federal training and education programs o Also, almost half the states and hundreds of cities have statutes that prohibit discrimination of this group  Gender Identity - EEOC ruled that discriminating against someone for being transgender is a violation of Title VII o Also, almost 1/4 of the states and hundreds of cities prohibit gender identity discrimination  Defenses to Charges of Discrimination - under Title VII, defendant has 4 possible cases: o Merit - defendant isn't liable if he shows that the person he favored was the most qualified  Test results, education or productivity can be used to show merit, if they relate to the job in question o Seniority - seniority system violates Title VII only if it was designed with the intention to discriminate  Legitimate seniority system is legal even if it perpetuates past discrimination o Bona Fide Occupational Qualification (BFOQ): an employer is permitted to establish discriminatory job requirements if they are essential to the position in question  Only religion, sex or national origin can be a BFOQ, never race or color  Courts not particularly sympathetic to BFOQ claims, especially based on customer preference, BUT court recognizes 3 situations where employers may consider customer preference: 1. Safety: Ex - maximum security men's prison could refuse to hire a women on the terms that an attack on her would threaten the safety of both the male guards and inmates 2. Privacy: Ex - may refuse to hire a women to work in a men's bathroom and vice versa 3. Authenticity: Ex - may refuse to hire a man for a women's role in a movie o Affirmative Action - goal is to remedy the effects of past discrimination  Not required by Title VII, nor is it prohibited  AA programs have 3 different sources: 1. Litigation - courts have power to order AA to remedy the effect of past discrimination 2. Voluntary Action - employers can voluntarily introduce AA plan to remember effects of past practices or to achieve (but not maintain) equitable representation of minorities and women, provided the plan isn't too unfair to majority members 3. Government Contracts - Johnson signed executive order in 1965 which prohibited discrimination by federal contractors a. In 1995 - Supreme Court dramatically limited the extent to which gov't can require contractors to establish AA programs  Ruled, under 14th Amendment, these programs are permissible only if they serve a "compelling governmental interest" and are "narrowly tailored" so that they minimize harm to white males  Equal Pay Act of 1963 - employee may not be paid at a lesser rate than employees of the opposite sex for equal work  Equal work = tasks that require equal skill, effort and responsibility under similar working conditions  If employee proves she is not being paid equally, employer will be found liable unless the pay difference is based on merit, productivity, seniority or some factor other than sex o "factor other than sex" = prior wages, training, profitability, performance in interview and value to company  Pregnancy Discrimination Act - employee may not fire, refuse to hire or fail to promote a woman because she is pregnant  Employer is liable if work environment is so hostile towards pregnant woman that affects her ability to do her job  Employer must treat pregnancy and childbirth as any other temporary disability o Ex: if employees are allowed time off for other medical disabilities, women must also be allowed maternity leave  Also protects woman's right to terminate pregnancy o Employer cannot fire a woman for having an abortion Employment Law  At-Will Employment - statutes and court decisions have eroded the doctrine of at-will employment  BUT remains foundation of US employment law  Ex: Rodrigues vs. Scotts' Lawnservice o State law can prohibit smoking, Mass did not…court ruled Scotts' was within its rights  Slippery slope, opens the doors to discriminate for a lot of other things that people do every day  Ex: unhealthy eating, extreme sports, etc.  Wrongful Discharge: remedy to protect employees from termination for particularly unfair reasons


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